1. To justify a motion to withdraw a plea prior to sentencing, the motion should
allege that the defendant is not guilty of the offense charged and that the plea
was made because of fraud, duress, mutual mistake, or lack of understanding of
the charge and the effect of the plea.

2. K.S.A. 22-3210 requires that the district court address a defendant personally
and determine that the guilty plea is being made voluntarily and with an
understanding of the nature of the charge and the consequences of the plea.

3. A defendant who is taking prescription drugs, and who informs the court that he
or she is not under the influence of any intoxicating drugs, is able to make a
voluntary plea.

4. K.S.A. 21-4608(a) provides that when a defendant is sentenced for separate
crimes on the same date, the court has discretion to run the sentences
concurrently or consecutively, but must exercise that discretion on the record. A
sentence imposed under the mistaken belief that consecutive sentences are
mandatory must be vacated and remanded for resentencing.

5. K.S.A. 21-4603d(a) does not apply to a defendant who has committed a new
felony whileon bondin a prior felony case.

6. The "double rule" contained in K.S.A. 21-4720(b)(4), which provides that the
total prison sentence in a multiple conviction case cannot exceed twice the base
sentence, only limits the sentence for multiple convictions arising from a single
complaint, information, or indictment.

7. K.S.A. 21-4720(b)(6) applies to sentencing in multiple conviction cases
regardless of whether the crimes were charged in one document or several.

8. When a defendant is sentenced for multiple crimes and the sentence for the
primary crime is a prison term, all consecutive sentences will be served in prison.

MARQUARDT, J.: Cherri Q. Christensen appeals from the denial of her motion
to withdraw her guilty pleas and the sentences subsequently imposed on three drug
convictions in two cases.

On October 10, 1995, Christensen pled guilty in case No. 94 CR 465 to
possession of methamphetamines with intent to sell or distribute, a drug severity level 3
felony, and in case No. 95 CR 230 to possession of methamphetamines, a drug
severity level 4 felony, and to possession of marijuana, a class A nonperson
misdemeanor.

On December 4, 1995, Christensen filed a motion to withdraw her guilty pleas.
Christensen alleged that at the time of the plea hearing, she was unaware that the
district court was required to order the sentences to run consecutively. On December
6, 1995, the district court denied the motion and proceeded to sentencing.

At sentencing, the State made the following remarks:

"[THE STATE:] In 95 CR 230, the guidelines call for a presumption of probation, the
recommendation if the Court follows that, is for community corrections. But, as a practical matter I don't
know how the defendant could report to community corrections or comply with any terms of community
corrections if she's incarcerated on the other case. And I believe the guidelines allow the Court, if one
case has a presumption of prison and one doesn't, to impose prison on both of them and not be
considered a departure, and so that would be our recommendation in that case." (Emphasis added.)

Christensen filed a motion for downward departure in both cases based on her
medical problems and the drug-related nature of the crimes. The State informed the district court that the two felony sentences should be
served consecutively.

The district court sentenced Christensen to 22 months in prison in 94 CR 465
and 15 months in prison for possession of methamphetamines in 95 CR 230, ordering
that these sentences be served consecutively. The district court also sentenced
Christensen to 12 months in jail for possession of marijuana and ordered that this
sentence run concurrent with the felony crimes.

Plea Withdrawal

Christensen argues that the district court abused its discretion by denying her
motion to withdraw her guilty pleas.

A district court's denial of a motion to withdraw a plea will be reversed only if the
district court abused its discretion. See State v. Johnson, 258 Kan. 607, 610, 907 P.2d
140 (1995).

Christensen moved to withdraw her pleas before sentences were imposed.

"To justify a motion to withdraw the plea prior to sentencing, the motion should allege
that defendant is not guilty of the offense charged and that the plea was made because
of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect
of the plea." Johnson, 258 Kan. at 610-11.

In determining whether a defendant should be allowed to withdraw a plea, the
district court should consider whether the defendant was represented throughout by
competent counsel; whether the defendant was misled, coerced, mistreated, or unfairly
taken advantage of; and whether the plea was freely, fairly, and understandingly made.
State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990).

K.S.A. 22-3210(3) requires the district court to address a defendant personally
and determine that the guilty plea is being made voluntarily and with an understanding
of the nature of the charge and the consequences of the plea. See generally State v.
Shaw, 259 Kan. 3, 10-11, 910 P.2d 809 (1996).

Christensen argues that at the time of the plea, the district court did not
adequately inquire about her mental state after she informed the court that she was
taking prescription medications. Christensen also argues that the district court did not
adequately ascertain that her guilty pleas were made voluntarily and with an
understanding of the charges and the consequences.

At the plea hearing, the district court asked Christensen if she was presently
under the influence of any intoxicating liquors or drugs, to which Christensen replied,
"No, just prescription drugs." Christensen does not allege that any of the drugs she had
been taking possessed intoxicating or mind-altering effects. The district court did not
make any further inquiry into the effect of the prescription medications on Christensen.

Christensen cites U.S. v. Cole, 813 F.2d 43, 46 (3d Cir. 1987), as support for her
position that her pleas were not voluntary. However, Cole is distinguishable in that Cole
claimed that he had ingested a substantial amount of heroin and cocaine the night prior
to and through the early morning hours of the day of his plea hearing.

Christensen also cites U.S. v. Rossillo, 853 F.2d 1062, 1065-67 (2d Cir. 1988),
where the district court asked Rossillo if he was under the influence of any drug,
alcohol, or other intoxicants. Rossillo did not personally answer the question or address
the district court in any way. The federal court of appeals held that the failure to make
an on-the-record determination whether Rossillo was under the influence of any
medication and whether his plea was voluntarily and knowingly entered constituted
reversible error. 853 F.2d at 1067.

Christensen argues that because she had been taking prescription medications
and had been suffering from severe emotional problems, she did not understand that
her sentences might run consecutively. We hold that a defendant who is taking
prescription drugs, and who informs the court that he or she is not under the influence
of any intoxicating drugs, is able to make a voluntary plea. The district court asked
Christensen if she understood that in 95 CR 230 the court would order her sentence to
run consecutive to her sentence for 94 CR 465, and Christensen responded, "Yes, sir."

The record indicates that Christensen was represented by counsel throughout
the plea hearing, that she did not allege in her motion to withdraw her pleas that she
was not guilty, and that she understood the district court would order her sentences to
be served consecutively. The district court did not abuse its discretion in denying Christensen's motion to
withdraw her pleas. See State v. Reed, 248 Kan. 506, 512-13, 809 P.2d 553 (1991).

Mandatory Consecutive Sentencing

Christensen argues that the district court erred in concluding that consecutive
sentencing was mandatory because Christensen had committed the offense in 95 CR
230 while she was on bond in 94 CR 465. Christensen also argues that the sentences
are illegal because the district court imposed sentence based on an erroneous view of
the law.

At both the plea hearing and sentencing, the State informed the district court that
because Christensen was out on bond when she committed the second offense, the
law required that the sentences run consecutively. The district court ordered the two
felony sentences to be served consecutively without stating on the record that it was
exercising its discretion in doing so.

In State v. LaGrange, 21 Kan. App. 2d 477, 901 P.2d 44, rev. denied 258 Kan.
861 (1995), this court addressed a nearly identical situation. In LaGrange, the district
court found that it was required by law to impose consecutive sentences because the
defendant was on bond in the first case when he committed the offense in the second
case. Following State v. Owens, 19 Kan. App. 2d 773, 875 P.2d 1007 (1994), the
LaGrange court held that K.S.A. 21-4608(a) "provides that when a defendant is
sentenced for separate crimes on the same date, the court has discretion to run the
sentences concurrently or consecutively." 21 Kan. App. 2d at 484. The district court
must exercise that discretion on the record, and a sentence imposed under the
mistaken belief that consecutive sentences are mandatory must be vacated and
remanded for resentencing. 21 Kan. App. 2d at 484-85.

The State does not address whether LaGrange controls this issue. Rather, the
State argues that Christensen cannot appeal the sentence because it had
recommended the sentence provided in the plea agreement and that was the sentence
that she received. See K.S.A. 21-4721(c)(2). These parties had not agreed to a
sentence in a plea agreement that was subsequently approved by the sentencing court.
Cf. State v. Starks, 20 Kan. App. 2d 179, 180, 885 P.2d 387 (1994) (applying K.S.A.
21-4721[c][2] where the defendant and the State requested the district court to impose
a sentence agreed upon in a plea agreement and the district court imposed the
requested sentence.)

The sentences are vacated, and the case is remanded for resentencing. On
remand, if the district court orders the sentences to be served consecutively, it should
clearly indicate on the record that it is exercising its discretion.

Dispositional Departure

Christensen argues that the district court erred by imposing a dispositional
departure in 95 CR 230 without making findings of substantial and compelling reasons
for the departure. The crucial question is whether K.S.A. 21-4720(b)(6) applies so that
the sentence is not a dispositional departure.

Christensen's conviction for possession of methamphetamines in 95 CR 230
was a drug severity level 4, and the parties agreed that her criminal history was a G.
The sentencing range for drug offenses provides for presumptive probation. See
K.S.A. 21-4705. At sentencing, the State argued that the imposition of a prison
sentence would not be considered a departure because 94 CR 465 carried a
presumptive prison sentence. The district court imposed a prison sentence without
stating that it was making a departure or its substantial and compelling reasons for a
departure. Neither counsel nor the court cited or discussed any relevant legal authority
on this point.

The district court filed a separate journal entry in each case, applying a criminal
history of G to each offense and sentence.

The parties discuss two possible justifications for a prison sentence being given
in 95 CR 230 which would not constitute a departure: (1) Christensen was on bond
pending trial in 94 CR 465 when she committed the later felony; and (2) the district
court was sentencing Christensen in a multiple conviction case where the sentence for
the primary crime was a prison term.

On Bond

The State argues that when a defendant is sentenced for a crime committed on
felony probation or other felony nonprison status, the district court may sentence the
defendant to prison for the new offense even if that offense otherwise presumes a
nonprison sentence and that this is not considered a departure. See K.S.A. 21-4603d(a).

In State v. Arculeo, 261 Kan. 286, 293, 933 P.2d 122 (1997), the court held that
the statutory provision in K.S.A. 21-4603d, which authorizes a court to sentence an
offender to imprisonment for a new conviction even when the new crime of conviction
otherwise presumes a nonprison sentence, does not apply to a defendant who
committed a new felony while on bond pending sentence in a prior felony case.

Under Arculeo, Christensen's on bond status does not authorize the imposition of a
prison sentence in a presumptive probation case without a departure.

"(b) The sentencing judge shall otherwise have discretion to impose concurrent or
consecutive sentences in multiple conviction cases . . . . In cases where consecutive sentences may be
imposed by the sentencing judge, the following shall apply:

. . . .

"(4) The total prison sentence imposed in a case involving multiple convictions arising from
multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. . .

. . . .

"(6) If the sentence for the primary crime is a prison term, the entire imprisonment term of the
consecutive sentences will be served in prison." (Emphasis added.)

Christensen argues that subsection (b)(6) only applies to cases where the crimes
arise in a single case with multiple counts; since the relevant crimes were charged in
two separate cases and arose from separate events, this subsection does not apply.

In State v. Fields, 22 Kan. App. 2d 148, 150, 912 P.2d 774 (1996), this court
noted that K.S.A. 1993 Supp. 21-4720(b) (the statute in effect at the time of the crime)
limited the length of consecutive sentences that could be imposed in multiple conviction
cases and held that the statute applied when sentencing a defendant for multiple
counts from more than one information. The Fields court noted that K.S.A. 1993 Supp.
21-4703(c) defined "conviction event" as "'one or more felony convictions occurring on
the same day and within a single court. These convictions may result from multiple
counts within an information or from more than one information.'" 22 Kan. App. 2d at
149. The Fields court also noted: "K.S.A. 1993 Supp. 21-4720(b)(4) refers to a
'conviction event.' Therefore, Fields' sentencing would be included as a 'multiple
conviction case' and would be subject to the limitations of K.S.A. 1993 Supp. 21-4720(b)." (Emphasis added.) 22 Kan. App. 2d at 149.

In State v. Roderick, 259 Kan. 107, Syl. ¶ 3, 911 P.2d 159 (1996), the court
stated that the version of 21-4720(b) that became effective on July 1, 1994, "applies to
multiple convictions arising from multiple counts within an information, complaint, or
indictment and not to multiple convictions entered on the same date in different cases."
(Emphasis added.) The Roderick court specifically held that the "double rule" contained
in K.S.A. 21-4720(b)(4), which provides that the total prison sentence in a multiple
conviction case cannot exceed twice the base sentence, only limits the sentence for
multiple convictions arising from a single complaint, information, or indictment. 259
Kan. at 114. Stated conversely, Roderick held that the double rule of K.S.A. 21-4720(b)(4) does not limit the sentence imposed where the multiple crimes arise from
different charging documents. The Roderick court noted that the intent behind the 1994
legislative changes was to limit "'application of the "double rule" limit for consecutive
sentence[s] to multiple [counts] in the same case rather than all counts for which the
defendant was convicted at one time, regardless of whether from different cases.'" 259
Kan. at 114 (quoting Kansas Report on Legislative Interim Studies, p. 116 [1994]).

Here, Christensen's two relevant offenses arose from separate informations and
were charged in separate cases. The question is whether the rule announced in
Roderick should apply to limit the application of all provisions of K.S.A. 21-4720(b) or
whether Roderick only limits the application of the double rule contained in K.S.A. 21-4720(b)(4).

The issue in Roderick was the scope of application of the double rule contained
in K.S.A. 21-4720(b)(4). 259 Kan. at 114. Thus, the actual issue decided in Roderick,
259 Kan. 107, Syl. ¶ 3, is distinguishable from this case. See State v. Sims, 254 Kan.
1, 7, 862 P.2d 359 (1993) (noting that the syllabus points "shall be confined to points of
law arising from the facts in the case"); Steck v. City of Wichita, 182 Kan. 206, 209, 319
P.2d 852 (1958) ("What is said in an opinion or the syllabus thereof always is to be read
and interpreted in the light of the facts and questions present in the case.").

The statutory language relied on in Roderick, 259 Kan. at 113-14, to limit the
application of K.S.A. 21-4720(b) to cases arising from a single charging document only
appears in subsection (b)(4). Thus, the application of this language is logically confined
to subsection (b)(4). This court holds that K.S.A. 21-4720(b)(6) applies to sentencing in
multiple conviction cases regardless of whether the crimes were charged in one
document or in several. When a defendant is sentenced for multiple crimes and the
sentence for the primary crime is a prison term, all consecutive sentences will be
served in prison. The district court did not impose a departure sentence.

This court also holds that all of the provisions of K.S.A. 21-4720(b), except for
subsection (b)(4), apply when sentencing a defendant for multiple crimes arising from
different charging documents. The district court should apply all of these provisions on
remand. For example, if the district court sentences Christensen to consecutive
sentences, it must use a criminal history of I for the nonbase sentence. See K.S.A. 21-4720(b)(5).

In sum, the sentence given in 95 CR 230 was not a dispositional departure;
however, the district court erred by imposing consecutive sentences without stating on
the record that it was exercising its discretion.

The convictions are affirmed, the sentences are vacated, and the case is
remanded for resentencing.